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Decisions of the Superior Courts of New South Wales, 1788-1899

R v Weatherwiche [1835] NSWSupC 3

bushrangers - murder - North Shore - hulk, escape from - convict escape

Supreme Court of New South Wales

Dowling J., 11 February 1835

Source: Sydney Gazette, 12 February 1835[ 1]

(Before Mr. Justice Dowling and a Military Jury.)

Thomas Weatherwiche, a prisoner of the crown was placed at the bar, charged with the murder of one John Smith, on the North Shore, by striking him with a stick.

Jeremiah Sheeny, a youth of 14 years of age sworn - I am assigned to Mrs. Finnis, on the North Shore; I knew the deceased John Smith; he was also a servant to Mrs. Finnis; I saw the deceased when he was dead at the hospital on the 31st Jannary; I saw him alive on the 27th of January, at the North Shore in my Mistress's kitchen; from his hut he came about 20 yards from my Mistress's house, on the Tuesday morning before he died; I was going to call the deceased to breakfast, when I saw the prisoner come out of deceased's hut and wipe his hands, which were covered with blood, on the door of the hut; he ran up to me and laid hold of my wrists, and told me there were two men inside the hut, and told me if I came down to the house with him, he would not harm me; upon which I roared out, and he put his hand on my throat; we then had a scuffle and both fell down to the ground together; at this time two of the dogs came up and began to fight each other; another came up and went to the prisoner and leapt upon him; he then let me go; he picked up my hat which was on the ground and went away; I saw blood on his hands, and I saw him wipe them on the door; I then ran home and said there were bushrangers about; and locked myself up; there were two young ladies who then ran to the water side to call a boat; Miss Talbot and a child; my mistress then called a boat which was going by with two men in it, and they came ashore; I then went and called some of Mr. Mossman's men, they came with me and we then went to the hut and saw John Smith lying under his bed, covered with blood; his eyes were open; he appeared sensible, but could not speak; he was then taken to the hospital; I saw a stick in the hut; there was no blood on it, but the stick was broken, and there were bits of it lying about the hut; the stick now produced is the identical one, I saw in the deceased's hut; I saw some boxes in deceased's hut broken open by having the hinges taken off, and the sleeve of a jacket was out of one of the boxes; the hat now produced is my hat, the one prisoner ran away with; I never saw the prisoner before that day; the deceased was about 30 years of age.

Examined by the prisoner - You asked me to tell you where the money was; there was no biscuit in the hut; there was biscuit in the kitchen; I never saw you before.

Miss Julia Talbot, sworn - I was living with Mrs. Finnis at Robinson's Cottage, on the North Shore; I remember the morning John Smith was murdered; it was yesterday fortnight; I heard the boy Sheehy making a noise, and thought it was some of the men beating him; the noise continued, I and Mrs. Finnis went out; we then met the boy, and he said there was a bushranger; at the time, I thought: it was not a bushranger, till the boy told us Smith's hut was all over blood and Smith was in it; I then went to the hut, not believing what the boy said, and saw the deceased lying on the floor covered with blood; I spoke to him and he turned his head two or three times towards me, as if he knew me, but he could not speak; I looked round the hut and saw the lamp on the ground, as if it had been thrown down in a scuffle; I was too much alarmed to take any further notice and ran to the house; I also saw a man run away before I went to the hut, and saw the same man have hold of the boy's throat; at the time I thought it was one of our own men and not a stranger; I went down to the hut after the deceased was removed to the hospital, and I there saw some biscuit rolled up in a towel, and a box broken open; we thought it strange there should be biscuit in the hut, as the deceased had been living with Mrs. Finnis a year, and was a gardener; I never saw the prisoner at the bar before; I was close to the prisoner, but thinking he was one of our own men took no notice of him; he was dressed as one of our men.

Cross examined by prisoner - There was a box broken open; the hut stands about 100 yards from the house; no one could get out of the hut without my seeing them; there was a window in the hut; no one could get out of the window without being seen by me.

Dr. Mitchell sworn - I am Colonial Surgeon; I remember the day Smith came to the hospital; he was brought there on the 27th January last, in a state of insensibility, from wounds in the head; he lingered there till the 29th of January, 8 o'clock in the evening, when he died; he died from a fracture in the skull, and extravasation of blood in the head; the wounds I should imagine were produced by a sort of club; the stick now produced would inflict such wounds; the deceased appeared to have several blows in the head; he was quite insensible from the time he was brought to the hospital to the time he died; I never had any hopes of his recovery.

William Pearce sworn - I am a servant to Mrs. Finnis; I know the hut where Smith was murdered, and remember the day well; Smith was alive at 5 o'clock in the morning of that day; I returned at 20 minutes after 3 in the afternoon; when I went into the hut there was a great quantity of blood under the bed, and my box was broken open; I lived in the same hut with deceased; I did not know of any biscuit being in the hut; I missed a pair of trowsers and a check shirt, and in lieu thereof I found a red shirt and three parts of a pair of duck trowsers; I went to see Smith at the hospital before I went home; I had crossed to Sydney on the morning of the day deceased was murdered; his face was so much disfigured that I could not identify him, except by his breast and hands; the boy Sheehy told me the man who had murdered deceased was about 5 feet 10 inches high, with light eyes and brown hair; the trowsers now produced are mine; the red shirt does not belong to any one in the hut.

Cross-examined by prisoner - I never saw you before in my life; I did not give you the shirt and trowsers now produced (upon this the prisoner at the bar said, ``you are a false man"); the stick supposed to be the one deceased was beaten with might have been in the hut for the purpose of lighting the fire; I never brought any biscuit into the hut; the hut is 100 yards from the house; there is a door in the front, and a window in the side of the hut; a man might get out of the window while another was approaching and secrete himself in the bush at the back of the house, without being seen, Smith, for the last few weeks preceding his death, was dissatisfied with his place, on account of my having £10 a year, and he being allowed nothing; I recollect Mrs. Finnis giving deceased a pair of trowsers, and getting them back from him; I also recollect deceased having a hat given him; an old one of Mr. Finnis's.

(The examination of this witness by the prisoner, and the perfect knowledge prisoner appeared to have of the place, and the circumstances that transpired there, plainly evinced that the prisoner was on intimate terms with some person connected with that establishment although this witness denied ever having seen him before.)

Thomas Clarke, Esq. Police Magistrate sworn - I have some land at the North Shore; on hearing of the murder at Mrs. Finnis's, I proceeded to the hut, accompanied by some of the police; I saw the stick now produced, but there was no blood on it; I saw the deceased after the accident, the first time, at a public-house on the King's Wharf; the hut appeared to have been the scene of a recent scuffle, the things therein, appeared much disordered.

Cross-examined by the prisoner - There was a window in the hut, but I did not take much notice of it; I think it was shut at the time I went into the hut; a man might get out of this window while a person was approaching, without being seen.

Colonel Wilson, Chief Police Magistrate, sworn - I heard of an outrage being committed on the North Shore, on the 27th January, I immediately sent constables over, and proceeded there myself the next morning; I supposed, from the man's clothes being found in the hut, and the clothes being recognized as belonging to the man who had escaped from the hulk, that he was the man who had committed the outrage; he was apprehended on the following Thursday and sent to the Barracks, and from thence to the Hospital to John Smith, to see if Smith could recognize him, but Smith did not by any sign appear to have the least knowledge of him, being perfectly senseless at the time; he (prisoner,) told me, after he was committed, that he went to a certain place after he had escaped from the hulk, to a hut, which I found out, where he was harboured by two men, that it was here the robbery was contemplated, but no murder; at Mrs. Finnis's he said, he had gone himself a few days before the murder was committed, to Mrs. Finnis's, making himself acquainted with the servants and the way of the house; he told me the boy Sheehy had given him the waistcoat, that Pearce had given him the shirt and trowsers he had on when he was apprehended, and also that the boy had given him the biscuit, and that he was maintained for two days by Mrs. Finnis's servants; he said that the boy Sheehy told him that the biscuit was kept in a loft, and that he couldn't get any, till he had a good excuse to go to the loft, which he said he would do.  He said that the prisoner of the Crown who had harboured him was with Smith in the hut the morning that the murder was committed, and the prisoner on going outside, saw the boy Sheehy coming towards the hut; he said he had no doubt the murder was committed by the other man who was with him, in his own defence, to prevent his being taken, while he, prisoner, was outside the hut.  He adduced, by way of argument, that his hands were not bloody, or he should have stained the lad's clothes when he grappled with him; and also, that the man who murdered deceased, got away by the window of the house; the man's name, whom prisoner said was his accomplice, and murdered Smith, was Patrick Brennan, who is now in custody; I did not observe any marks of blood on the door of the hut.  All this conversation passed between the prisoner and me, in the jail, after his committal.

George Jilks, Chief Constable - I was directed by the Chief Police Magistrate to strip the prisoner at the bar; the trowsers, shirt, shoes, and hat, now produced, are the identical articles I took off the person of the prisoner; I took the boy, Sheehy, into the room where the prisoner and 8 or 10 more prisoners were standing, and he picked him out directly, with the clothes on now produced.

Miss Julia Talbot, recalled, by the Court - I went into the hut after I head the boy, Sheehy, cry out; when I went in the window was shut; I cannot say whether the window was secured inside or not; I am sure no person went through the window from the time I left the house to the time I opened the door of the hut; when I saw the man whom I suppose to be the prisoner and the boy struggling, I though they were only playing together, and the man was one of our own men, and therefore was not alarmed; the hut is situated at the side of the house, and is in sight of the kitchen, from whence I saw the man and boy struggling; if any person had jumped out of the window I must have seen him; when I first saw the man and boy struggling I returned to the parlour; five minutes elapsed before I saw the hut again, and then, from curiosity, I went directly to the hut, and saw Smith in the manner before described by me, lying on the ground weltering in his blood.

Elias Hibbs, sworn - I am a boatswain of the hulk; I know the prisoner at the bar; he was a prisoner on board the hulk; I missed him on New Year's Eve; he was sentenced to Norfolk Island for 7 years; he got away from the hulk by lowering himself into the boat; I did not miss him till the boatswain's mate came and told me he was not to found; I then went and made enquiry myself, and found he was gone; the sentinel then went and examined, and found the painter of the boat cut, and the boat gone; the next morning I found the boat at Milsom's Point; there were four oars in the boat when she was fast to the vessel; when she was found there was only one oar in her; witness could not swear to any of the clothes produced.

Ludavina Finnis, sworn - I remember the morning Smith was murdered; I saw a man and the boy, Sheehy, struggling.

Cross-examined by the prisoner - Some one went up stairs to the loft where the biscuit was kept that morning (Tuesday), and took some biscuit; there was a melon stolen one morning, and the boy Sheehy was accused of the the [sic] theft; I dept the dinner warm for Pearce, my house servant, on the Saturday before the Tuesday the murder was committed; the knowledge the prisoner displayed of every transaction that took place in Mrs. Finnis's establishment, even to family matters, was truly astonishing; so much so, as to leave no doubt on the mind of this witness that he was acquainted with some person in her establishment.

This closed the case for the prosecution.

The prisoner made no defence, but called Mr. Weston as to his character, who gave him the character of being a very quiet man whilst in jail.

This closed the case for the prisoner.

The Jury, after retiring for a few minutes, returned a verdict of guilty against the prisoner.

The Judge, in the most impressive manner, pronounced sentence of death on the prisoner, and sentenced him to be executed on Friday morning.

 

Notes

[1 ] For the trial notes, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3289, vol. 106, p. 187, continued at 2/3290, vol. 107, p. 1.  See also,Australian, 13 February 1835.  The Sydney Herald, 16 February 1835, complained that Dowling J. treated a female witness with undue warmth and harshness.

Published by the Division of Law, Macquarie University